Elder and Estate Planning

Guardianship in North Carolina

Guardianship is the court supervised process of naming someone to make decisions for an adult who cannot. The process is governed by Chapter 35A of the North Carolina General Statutes.

Dealing with a loved one who is mentally incapacitated is one of the most difficult experiences of a lifetime. Whenever possible, we work with our clients to avoid guardianship, because they can be confrontational and family-dividing, and impose years of burdensome red tape and court reporting requirements.

Avoiding guardianship issues should be one of your greatest motivators to get expert legal guidance for an adequate estate plan. This is extremely important for someone with Alzheimer’s or another chronic debilitating illness. It is also important for someone who is healthy, to guard against the possibility of becoming incapacitated unexpectedly through a stroke or unfortunate accident.

Before proceeding with a guardianship for a family member, you should consult with a lawyer experienced in this area. There may be ways of avoiding the need for a guardianship, or to limit the guardianship so that there is less court involvement. If a guardianship is needed, then take care to act in a way to avoid family arguments if possible, and to preserve the autonomy of your loved one as best possible.

Generally a guardianship for an older adult will be needed in one of three situations, as follows:

The adult failed to plan ahead with powers of attorney for financial and health care matters, and did not use trust-based estate planning. In this situation, the incompetent adult didn’t choose anyone to make important decisions, and so it will be up to the court to do so.

There is evidence that an agent appointed by the adult or a caregiver is abusing their authority. The court’s intervention will be needed to override the already established legal relationships and establish a court-appointed guardian to take over. This could happen if for example the agent under the financial power of attorney is using money for their own benefit.

The adult has in place powers of attorney and the agent is acting properly but the adult has reached a point where they cannot make their own decisions yet insist on doing so. In that case, the court’s authority may be needed to remove the incompetent adult’s ability to make their own decisions (or their ability to continue to seek to revoke current legal documents such as powers of attorney and trusts) and place full authority in the court-appointed guardian.

Every adult is presumed to be competent, and capable of making his or her own decisions unless a court determines otherwise. If a person over age 18 cannot manage their own affairs due to a mental disability, the court will appoint a guardian as substitute decision maker for the incompetent adult (called the “ward”).

There are three types of guardians in North Carolina: (1) guardian of the person, (2) guardian of the estate, and (3) general guardian. The guardian of the person is in charge of making personal and medical decisions for the ward. The guardian of the estate is in charge of making financial decisions on behalf of the ward. When the ward needs both a guardian of the person and guardian of the estate, and one person is named to handle both roles, that person is called a general guardian.

In some situations, there is no need for a guardian of the estate. For example, of a person has only a monthly social security check and no other assets, then only a guardian of the person will be named. In situations where there are finances to manage in addition to the need for health care decisions, the court could decide to name one person to serve as guardian of the estate, and another person as the guardian of the person. This might happen where there are family members who could make medical and health care decisions, but the court prefers to have someone with more financial experience as guardian over the finances.

A guardianship starts with a petition filed with the county Clerk of Superior Court. There will be a hearing in front of the Clerk to determine incapacity. In some situations, this can be contested and be appealed through the court system. After the courts determine the need for a guardianship, then the court will also decide who should be guardian, and the extent of the guardian’s authority. After the guardian is named, the guardian will be responsible for reporting back to the court about all financial transactions, and court approval may be required for certain decisions.

Generally a guardian should get legal assistance early in the guardianship to keep the proper records and to fulfill responsibilities. The guardianship rules are very specific and detailed, and it is easy for someone unfamiliar to make mistakes that could cause big problems.

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